Jacksonville Prop. Rights Ass'n Inc. v. City of Jacksonville

• Decision Date: 25 March 2011
• Docket Number: No. 09–15629.,09–15629.
• Citation: 635 F.3d 1266
• Parties: JACKSONVILLE PROPERTY RIGHTS ASSOCIATION, INC., a Florida non-profit corporation, Horton Enterprises, Inc., a Florida corporation d.b.a. The New Solid Gold, Hartsock Enterprises, Inc., a Florida corporation d.b.a. Doll House, Plaintiffs–Appellants Cross–Appellees,v.CITY OF JACKSONVILLE, FL, a Florida municipal corporation, Defendant–Appellee Cross–Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

635 F.3d 1266

22 Fla. L. Weekly Fed. C 1915

JACKSONVILLE PROPERTY RIGHTS ASSOCIATION, INC., a Florida non-profit corporation, Horton Enterprises, Inc., a Florida corporation d.b.a. The New Solid Gold, Hartsock Enterprises, Inc., a Florida corporation d.b.a. Doll House, Plaintiffs–Appellants Cross–Appellees,

v.CITY OF JACKSONVILLE, FL, a Florida municipal corporation, Defendant–Appellee Cross–Appellant.

No. 09–15629.

United States Court of Appeals, Eleventh Circuit.

March 25, 2011.

G. Randall Garrou, Weston, Garrou & Mooney, Los Angeles, CA, for Jacksonville Property Rights Association, Inc.Lawrence G. Walters, Walters Law Group, Altamonte SPG, FL, for Horton Enterprises, Inc.Cindy Ann Laquidara, Office of Gen. Counsel, Jacksonville, FL, for City of Jacksonville, FL.Appeals from the United States District Court for the Middle District of Florida.Before TJOFLAT, HILL and ALARCÓN,^* Circuit Judges.TJOFLAT, Circuit Judge:

This appeal stems from a city's attempt to control the location of nude dancing establishments operating within its borders. While both the city and the nude dancing establishments appeal the district court's order granting in part and denying in part both parties' motions for summary judgment,¹ the city has, during the pendency of this appeal, legislatively removed the two provisions underlying the dancing clubs' claims. Based on this subsequent action, we cannot entertain the merits of the parties' arguments.

I.

A.

Horton Enterprises, Inc. and Hartstock Enterprises, Inc. (collectively, the “Plaintiffs”)² operate adult entertainment establishments in Jacksonville, Florida. Horton has operated its club, “The New Solid Gold,” since 1982, and Hartstock has operated “The Doll House” since 1986. These two establishments constitute two of Jacksonville's three fully nude dancing establishments.

To lawfully operate in the City of Jacksonville (the “City”), a business's physical location must satisfy three separate zoning criteria: (1) geographic zoning district; (2) land-use designation (i.e., commercial or heavy industrial); and, for certain establishments, such as adult businesses, (3) minimum distances—termed “buffer” restrictions—from other locations, such as churches and schools.

The City creates these zoning criteria in two ways. First, the City's Comprehensive Plan (the “Plan”) acts as the zoning “constitution”³; the Plan is an overarching planning document that is not easily changed and with which all subsequent zoning and land-use legislation must comply. ⁴ Second, the City passes zoning ordinances that amend its municipal code; these ordinances and the municipal code enforce—and must be consistent with—relevant portions of the Plan.

Prior to 2005, the Plan permitted adult establishments like those operated by the Plaintiffs to operate in the Commercial/Community General–2 zoning district (“CCG–2”) and, within CCG–2 districts, only on plots designated for Heavy Industrial land use (“HI”). Adult establishments must also comply with various buffer restrictions established by the City and the State of Florida. ⁵ The Plaintiffs' locations did not comply with some of these requirements, but were allowed to operate as lawful non-conforming uses because their use predated the restrictions.

The City's adult zoning scheme⁶—as written—also subjected adult entertainment businesses to another regulatory wrinkle. A section of the City's municipal code—not the Plan—required adult businesses to obtain discretionary exceptions from the local sheriff before commencing operations. Jacksonville Municipal Code § 656.725(a)-(j). Thus, as written, the City's adult zoning scheme did not permit adult businesses to relocate or commence operations in any area—even the CCG–2 district zoned for HI—as of right. ⁷ Similar discretionary exceptions imposed by the City, though not the exceptions in § 656.725(a)-(j), were declared unconstitutional by this court in Lady J. Lingerie, Inc. v. City of Jacksonville, 176 F.3d 1358 (11th Cir.1999), where we held that adult businesses must be permitted some areas in which they could operate as of right. Id. at 1361–63.⁸ The City has never enforced the § 656.725(a)-(j) exceptions, however. It has not received a new business permit for an adult entertainment establishment in over a decade and therefore has had no occasion to enforce the provisions.

In 2005, the City altered its adult zoning scheme in two ways. First, it amended the Plan to remove references to adult entertainment in the description of HI land use. Prior to 2005, the description of HI included the following language: “[a]dult entertainment facilities are allowed by right.” The 2005 amendments deleted this passage and placed a similar reference in the description of Community/General Commercial land use (“C/GC”): “[a]dult entertainment facilities are allowed by right only in Zoning District CCG–2.” The implication of this change was that adult entertainment would be permitted in all CCG–2 districts, not just those districts with HI land use designations.

However, the City left in place a statement under the broader description of “commercial” uses, which preceded the more specific description of C/GC: “Adult entertainment facilities are allowed by right in the heavy industrial land use category, but not in commercial.” The reference to “commercial” included the C/GC land use designation. Until February 2009, the City interpreted the Plan as permitting adult entertainment only in CCG–2 zoned for HI. J. Final Pre–Trial Statement 14.

Second, the City passed Ordinance 2005–743–E (the “Ordinance”), amending Jacksonville's Municipal Code. Pertinent to this appeal, the Ordinance included a mandatory amortization provision requiring any adult business that did not conform to the City's adult zoning scheme—i.e., the Plaintiffs—to cease operation at that non-conforming location by November 10, 2010. Jacksonville Municipal Code § 656.725(k). If the Plaintiffs wished to continue operating, they would have to move to a new location in compliance with the adult zoning scheme. Neither of these changes eliminated the discretionary exceptions found in § 656.725(a)-(j), and those provisions remained on the books.

B.

The Plaintiffs sued the City in the United States District Court for the Middle District of Florida on December 14, 2005.⁹ After over two years of settlement negotiations, the Plaintiffs filed an amended complaint on May 28, 2008. The amended complaint sought relief under 42 U.S.C. § 1983, alleging that the City's adult zoning scheme violated their right under the First Amendment to present nude dancing.¹⁰

The Plaintiffs alleged that the City's adult zoning scheme was an invalid time, manner and place restriction because it did not leave the Plaintiffs with adequate alternative avenues for their protected activities as required by City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 50, 53–54, 106 S.Ct. 925, 930, 932, 89 L.Ed.2d 29 (1986).¹¹ They argued that, although the amortization provision would force them to move, the City's adult zoning scheme did not provide any locations where they could relocate as of right.

The Plaintiffs pointed to two provisions establishing the violation. First, § 656.725(a)-(j)'s requirements that adult businesses receive discretionary zoning exceptions rendered any available locations effectively unavailable for the purpose of counting alternative locations. See Lady J, 176 F.3d at 1361–63. Second, the Plaintiffs argued that the combined effect of the Plan and various buffer restrictions completely foreclosed all alternative locations. For this second theory, the Plaintiffs pointed to the Plan's requirements that adult businesses locate in CCG–2 districts zoned for HI land use. According to the Plaintiffs, none of the locations satisfying these criteria also complied with the various buffer restrictions.¹² Therefore, the City's adult zoning scheme effectively zoned adult businesses out of existence.

To remedy these violations, the Plaintiffs requested a declaratory judgment that the City's adult zoning scheme—including the mandatory amortization provision—was unconstitutional. They also sought a permanent injunction barring the City from either enforcing the amortization provision against the Plaintiffs at their current locations or preventing them from moving to new locations.¹³

The City's amended answer asserted that the City's adult zoning scheme provided the Plaintiffs with available sites to which they could relocate. First, the City denied that the exception requirements in § 656.725(a)-(j) were enforceable or had been enforced. Am. Answer ¶ 30. It claimed that, because the Plan permitted adult businesses “as of right” in CCG–2 districts, the exception requirements were invalid as to locations within CCG–2 districts. Second, the City admitted that the adult zoning scheme confined adult businesses to CCG–2 districts zoned for HI, but it denied that these requirements left no permissible locations for adult businesses. Id. ¶ 53(b)(3)-(8).

In January 2009, both sides filed cross-motions for summary judgment under Federal Rule of Civil Procedure 56. The City's motion maintained that the adult zoning scheme—locating adult businesses within CCG–2 districts zoned for HI—permitted 372 alternative sites, which provided sufficient alternative locations under Renton's time, manner and place requirements.

However, on February 17, 2009, the City completely changed its theory of the case. In its response to the Plaintiffs' motion for summary judgment, the City asserted for the first time that the Plan allowed adult businesses to locate in CCG–2 districts zoned for C/GC and not in areas zoned for HI. This new interpretation produced ninety-one available locations to which the Plaintiffs could relocate; again, the City argued that these sites satisfied the time, manner, and place test.

Noting the confused issues, the district court ordered the parties to re-file their motions for...